Flashcards in Crim Proc Deck (91)
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized
S&S governed by 4th? Qs
Executed by gov agent?
Area/item protected by 4th?
Physical intrusion or violation of reasonable expectation of privacy?
Individual has standing?
Gov agent includes
Private citizen at direction of police
Security guard deputized with power of arrest (campus cops)
Public school administrator
Area/item protected by 4th?
Houses (incl. "curtilage" - surrounding area of domestic use)
"Knowing exposure to 3rd parties":
Paint scrapings from car
Bank account records
view from public airspace
View across open fields
Reasonable expectation of privacy - test:
Actual subjective expectation
Recognized by society as reasonable expectation
Who has standing?
Individual's personal privacy rights invaded.
Overnight guest --> areas he is expected to access.
Use of 3rd party residence for biz - "personal"
Owns item - if reasonable expectation of privacy in AREA IN WHICH IT WAS SEIZED
Passenger in 3rd party's car - NO,
NY - YES re weapons if possession attributed to him
When does warrant satisfy 4th?
Neutral and detached magistrate.
Probably cause and particularity [OR - MBE ONLY - police relied in good faith]
Probable cause that?
Fair probability that contraband or evidence of crime will be found in area searched.
Hearsay - OK
Anon tip - see mess below
Particularity - doesn't need to mention name if indicative.
Anon tip = probably cause - MBE
CIRCUMSTANTIAL EVIDENCE ENOUGH
with police corroboration
sufficient for magistrate to make "common sense practical" determination
that PC exists
based on totality of circumstances
Anon tip = probably cause - NY
ALSO NEED INFO ABOUT INFORMANT
"veracity and reliability" of informant
informant's "basis of knowledge" AND police observation confirms sufficient detail suggestive of criminal activity in question
Good faith by police enoughto substitute PC [MBE only] - when not applicable?
Not applicable when:
Affidavit or warrant terribly lacking, magistrate biased, reckless falsehoods
When is a warrant properly executed?
Compliance with terms and limits
Compliance with "Knock and announce" rule
When is "knock and announce" not needed?
Officer reasonably believes it would be futile / dangerous / inhibit investigation
Valid warrantless search - 8 types
Search incident to arrest
Terry stop and frisk
1. Exigent circumstances
Evanescent evidence - disappears before warrant can be obtained
Hot pursuit - plain view evidence in home
Emergency aid - when entering premises due to emergency
2. Search incident to arrest
Search justified by officer safety and need to preserve evidence.
Must be contemporaneous with arrest.
Search incident to arrest - wingspan?
includes containers within immediate control, regardless of nature of offense.
NY: Can access containers only if he is suspected to be armed.
Search incident to arrest - car?
Interior cabin including closed containers - YES.
Trunk - NO.
After arrestee is SECURED - search car only with reason to believe it contains evidence RELEVANT to arrest.
NY - once arrestee is OUT OF CAR, can't search containers in car for anything!
Must be voluntary and intelligent
"Reasonable officer believes permission is granted"
Apparent authority - OK if officer reasonably believed he had actual authority
Consent in shared premises?
Any resident can consent to common areas
But objecting tenant prevails in "shared dominion/control" areas
Lesser expectation of privacy
PC that contraband/evidence is there
Containers big enough to contain contraband/evidence
TIMING for PC - can arise after being pulled over but before initiating search
5. Plain view
Lawful access to place where viewed
Lawful access to item (don't need to open bag)
Criminality of item immediately apparent
6. Inventory search
Arrestee - when booked into jail
Vehicle - when impounded
Regulations which are reasonable in scope
Search complies with regs
Search conducted in good faith (motivated solely to safeguard possessions or ensure officer safety)
7. Special needs
Needs of cops, gov employees, school officials
BEYOND general interest in law enforcement
Eg. Random drug testing For employees in sensitive possessions + public schoolchildren in extracuric activities
As parole condition
School search (reasonable, not excessively intrusive re age, sex, infraction)
Border searches (including citizens)
NOT when primary purpose is gathering criminal evidence!
8. "Terry" stop and frisk
Stop: Brief detention/seizure to investigate conduct
Frisk: Pat down for weapons
[No PC needed for either!]
Stop - grounds
Reasonable and articulable facts (less than PC) (objective)
that inform officer's belief
that criminal activity is present
Frisk - grounds
Specific and articulable facts (less than PC) (objective)
that suggest suspect is armed and dangerous
When is stop considered "stop" for 4th?
Reasonable person does not feel free to leave.